Before the Court en banc. Opinion by Justice Gibbons.
In this appeal from a district court order denying judicial review of a foreclosure mediation matter, the Court resolved the issue of whether a signed agreement resulting from Nevada’s Foreclosure Mediation Program (FMP) is an enforceable settlement agreement. In answering the question in the affirmative, the Court held that when the agreement is reached during the FMP, the document is signed by both parties, and the document otherwise comports with contract principles, the agreement is enforceable under District Court Rule 16. After participating in the FMP, the Appellant and Respondent entered into a settlement agreement calling for the short sale of the property at issue in exchange for a temporary suspension of Respondent’s foreclosure efforts. The Appellant contended that the agreement was not supported by consideration, and the Court rejected this view, instead holding that the Respondent’s agreement to temporarily suspend foreclosure proceedings was adequate consideration given in exchange for the Appellant’s promise to complete a short sale of the property within two months of the execution of the agreement. The Court further rejected the Appellant’s argument that the Respondent’s subsequent foreclosure of the property after failed short sale efforts violated the Foreclosure Mortgage Rules (FMR). Because the settlement agreement was enforceable and consistent with District Court Rule 16 as well as the FMR, the Respondent was entitled to foreclosure on the property after the Appellant failed to short sell it within the two-month period. Affirmed. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP)
Thursday, April 26, 2012
Thursday, April 5, 2012
MountainView Hospital v. Dist. Ct., 128 Nev. Adv. Op. 17 (April 5, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Hardesty.
In this petition for writ relief, the Court considered whether NRS 41A.071’s medical expert affidavit requirement without a properly executed jurat (evidence that the person making the statement did so under oath before the appropriate officer). NRS 41A.071 requires medical experts to supply an affidavit in a medical malpractice action, which is satisfied by either (1) a sworn statement before a proper officer that usually includes a jurat, or (2) an unsworn declaration made under penalty of perjury. Applying similar analyses from other jurisdictions, the Court concluded that a party can overcome a missing or defective jurat by providing other, outside evidence to demonstrate that the expert made the statement under oath or that the expert made an unsworn statement under penalty of perjury. In this case, the plaintiff’s medical expert made a statement, acknowledged by a notary, supporting the medical malpractice claim but lacking a jurat or other affirmation regarding the truth of the statement. In the writ proceedings, the plaintiff submitted a declaration from the expert stating that he swore to the statement under oath, but this evidence had not been presented to the district court. Accordingly, the Court granted the Petitioner’s requested relief in part and instructed the district court to conduct an evidentiary hearing to determine whether the plaintiff could present sufficient evidence to prove that the medical expert made his statement under oath in compliance with NRS 41A.071. Petition granted in part. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In this petition for writ relief, the Court considered whether NRS 41A.071’s medical expert affidavit requirement without a properly executed jurat (evidence that the person making the statement did so under oath before the appropriate officer). NRS 41A.071 requires medical experts to supply an affidavit in a medical malpractice action, which is satisfied by either (1) a sworn statement before a proper officer that usually includes a jurat, or (2) an unsworn declaration made under penalty of perjury. Applying similar analyses from other jurisdictions, the Court concluded that a party can overcome a missing or defective jurat by providing other, outside evidence to demonstrate that the expert made the statement under oath or that the expert made an unsworn statement under penalty of perjury. In this case, the plaintiff’s medical expert made a statement, acknowledged by a notary, supporting the medical malpractice claim but lacking a jurat or other affirmation regarding the truth of the statement. In the writ proceedings, the plaintiff submitted a declaration from the expert stating that he swore to the statement under oath, but this evidence had not been presented to the district court. Accordingly, the Court granted the Petitioner’s requested relief in part and instructed the district court to conduct an evidentiary hearing to determine whether the plaintiff could present sufficient evidence to prove that the medical expert made his statement under oath in compliance with NRS 41A.071. Petition granted in part. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In re Parental Rights as to C.C.A., 128 Nev. Adv. Op. 15 (April 5, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Douglas.
In this appeal from a judgment terminating parental rights, the Court reversed and remanded the district court’s decision terminating parental rights because the district court failed to state any factual or legal basis for the termination. The order, submitted by the state, recited the statutory bases for terminating parental rights but did not recite any facts from the two-day bench trial or apply the law to those facts. Citing the high standard of proof for termination proceedings and NRCP 52(a), which requires district courts to separately state its findings of fact and conclusions of law in a judgment on a bench trial, the Court held that it could not review the decision because neither the written order nor the record of oral proceedings contained factual findings. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal from a judgment terminating parental rights, the Court reversed and remanded the district court’s decision terminating parental rights because the district court failed to state any factual or legal basis for the termination. The order, submitted by the state, recited the statutory bases for terminating parental rights but did not recite any facts from the two-day bench trial or apply the law to those facts. Citing the high standard of proof for termination proceedings and NRCP 52(a), which requires district courts to separately state its findings of fact and conclusions of law in a judgment on a bench trial, the Court held that it could not review the decision because neither the written order nor the record of oral proceedings contained factual findings. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
Holiday Retirement Corp. v. State, DIR, 128 Nev. Adv. Op. 13 (April 5, 2012)
Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Douglas.
In an appeal from a district court order denying a petition for judicial review in a worker’s compensation action, the Court considered whether an employer is required to acquire knowledge of any employee’s permanent physical impairment before a subsequent injury in order to qualify for reimbursement from the subsequent injury account for private carriers under NRS 616B.587(4). NRS 616B.587 provides for reimbursement when an employee sustains an injury entitling him or her to compensation for disability that is substantially greater due to the combined effects of a preexisting impairment and the subsequent injury than that which would have resulted from the subsequent injury alone, provided certain conditions are met. The condition at issue in this case was whether the insurer could establish by written records that the Appellant/employer had knowledge of the permanent physical impairment at the time the employee was hired, or that the employee was retained in that employment after learning of the of the impairment. Appellant/employer hired an employee who had a workplace injury in 2003. It was later determined that the employee had a previous permanent physical impairment that occurred more than a decade earlier. DIR denied the request for reimbursement because Appellant did not learn of the earlier injury until after the day after the 2003 injury, and there was no indication that it provided a permanent modified duty or permanent full duty position to the employee. An appeals officer affirmed DIR’s denial on an alternative basis. Ultimately, the Court determined that the language of NRS 616B.587(4) was plain and unambiguous, and consistent with the majority in other jurisdictions having a knowledge requirement, held that an employer must acquire knowledge of an employee's permanent physical impairment before the subsequent injury occurs to qualify for reimbursement from the subsequent injury account for private carriers under NRS 616B.587(4). The Court affirmed the district court’s order denying a petition for judicial review. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).
In an appeal from a district court order denying a petition for judicial review in a worker’s compensation action, the Court considered whether an employer is required to acquire knowledge of any employee’s permanent physical impairment before a subsequent injury in order to qualify for reimbursement from the subsequent injury account for private carriers under NRS 616B.587(4). NRS 616B.587 provides for reimbursement when an employee sustains an injury entitling him or her to compensation for disability that is substantially greater due to the combined effects of a preexisting impairment and the subsequent injury than that which would have resulted from the subsequent injury alone, provided certain conditions are met. The condition at issue in this case was whether the insurer could establish by written records that the Appellant/employer had knowledge of the permanent physical impairment at the time the employee was hired, or that the employee was retained in that employment after learning of the of the impairment. Appellant/employer hired an employee who had a workplace injury in 2003. It was later determined that the employee had a previous permanent physical impairment that occurred more than a decade earlier. DIR denied the request for reimbursement because Appellant did not learn of the earlier injury until after the day after the 2003 injury, and there was no indication that it provided a permanent modified duty or permanent full duty position to the employee. An appeals officer affirmed DIR’s denial on an alternative basis. Ultimately, the Court determined that the language of NRS 616B.587(4) was plain and unambiguous, and consistent with the majority in other jurisdictions having a knowledge requirement, held that an employer must acquire knowledge of an employee's permanent physical impairment before the subsequent injury occurs to qualify for reimbursement from the subsequent injury account for private carriers under NRS 616B.587(4). The Court affirmed the district court’s order denying a petition for judicial review. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).
Haley v. Eighth Judicial District Court, 128 Nev. Adv. Op. 16 (Apr. 5, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Parraguirre.
In this petition for writ of mandamus, the Court addresses the scope of a district court’s authority to unilaterally modify a settlement agreement under NRS 41.200, Nevada’s statute governing the compromise of a minor child’s claim. The Court reviewed the history of the case, in which a child ward of the state’s claim against a health care provider was brought by Petitioners (her attorney and her guardian ad litem) on her behalf. The parties reached a settlement and submitted it to the district court for approval. The district court denied the compromise because the amounts awarded to the Petitioners exceeded the amount payable to the minor. Petitioners again moved for approval of the compromise, this time with supporting documentation. The district court approved the overall amount of the settlement but changed the allotted amounts payable to Petitioners and the minor, respectively. Petitioners’ writ of mandamus challenges the district court’s authority to alter the distribution unilaterally. The Supreme Court denied this part of the writ petition. The Court looked to NRS 41.200(1), which provides that a compromise made on a minor’s behalf is not effective until approved by a district court. The Court broadly construed the authority granted by this section to encompass a review of the apportionment of proceeds, including the amount for attorney’s fees and costs. As support for its position, the Court noted that other subsections of NRS 41.200 provide that a petition must include the proposed allocation of fees and expenses, and that therefore such aspects of the compromise are within a district court’s discretion when it conducts its review under 41.200(1). The Court also noted that its result is consistent with NRCP 17(c), which allows a district court to issue any “order as it deems proper for the protection” of a minor. The Court cited federal case law interpreting NRCP 17’s federal analog, FRCP 17, to give courts authority to evaluate whether the net recovery of a minor is fair and reasonable. Finally, the Court granted in part the writ petition because the district court’s reallocation of funds was unclear as between the attorney and the guardian. The Court instructed the district court to provide a distribution (with an explanation) of the allocated amount as between the attorney and the guardian. Denied in part, granted in part, and remanded. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
In this petition for writ of mandamus, the Court addresses the scope of a district court’s authority to unilaterally modify a settlement agreement under NRS 41.200, Nevada’s statute governing the compromise of a minor child’s claim. The Court reviewed the history of the case, in which a child ward of the state’s claim against a health care provider was brought by Petitioners (her attorney and her guardian ad litem) on her behalf. The parties reached a settlement and submitted it to the district court for approval. The district court denied the compromise because the amounts awarded to the Petitioners exceeded the amount payable to the minor. Petitioners again moved for approval of the compromise, this time with supporting documentation. The district court approved the overall amount of the settlement but changed the allotted amounts payable to Petitioners and the minor, respectively. Petitioners’ writ of mandamus challenges the district court’s authority to alter the distribution unilaterally. The Supreme Court denied this part of the writ petition. The Court looked to NRS 41.200(1), which provides that a compromise made on a minor’s behalf is not effective until approved by a district court. The Court broadly construed the authority granted by this section to encompass a review of the apportionment of proceeds, including the amount for attorney’s fees and costs. As support for its position, the Court noted that other subsections of NRS 41.200 provide that a petition must include the proposed allocation of fees and expenses, and that therefore such aspects of the compromise are within a district court’s discretion when it conducts its review under 41.200(1). The Court also noted that its result is consistent with NRCP 17(c), which allows a district court to issue any “order as it deems proper for the protection” of a minor. The Court cited federal case law interpreting NRCP 17’s federal analog, FRCP 17, to give courts authority to evaluate whether the net recovery of a minor is fair and reasonable. Finally, the Court granted in part the writ petition because the district court’s reallocation of funds was unclear as between the attorney and the guardian. The Court instructed the district court to provide a distribution (with an explanation) of the allocated amount as between the attorney and the guardian. Denied in part, granted in part, and remanded. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
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